United States v. Barnette , 203 F. App'x 518 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MAURICE LYDELL BARNETTE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00227-01)
Submitted: October 17, 2006 Decided: October 19, 2006
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MALONEY & MEIER, L.L.C., Charlotte, North
Carolina, for Appellant. C. Nicks Williams, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Maurice Lydell Barnette pled guilty to one count of
possession of a firearm after having been convicted of a crime
punishable by more than one year of imprisonment in violation of 18
U.S.C. § 922(g) (2000). The district court determined that
Barnette qualified for sentencing as an armed career criminal, and
sentenced him to 212 months of imprisonment. On appeal, counsel
filed an Anders* brief, in which he states that there are no
meritorious issues for appeal, but suggests that the district court
erred in including a prior conviction for larceny from a person in
the presentence report (PSR), and erred in sentencing Barnette as
an armed career criminal. Barnette was advised of his right to
file a pro se supplemental brief, but has not filed a brief. We
affirm.
In considering whether the district court properly
designated Barnette as an armed career criminal, this court reviews
the district court’s legal determinations de novo and its factual
findings for clear error. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003). Counsel first suggests the district court
erred in including a conviction for larceny from a person in the
PSR. Counsel does not dispute the validity of the conviction, but
essentially argues that this conviction did not constitute a
conviction of a violent felony under the Armed Career Criminal Act,
*
Anders v. California, 386 U.S. 738 (1967).
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18 U.S.C. § 924(e) (2000). However, even assuming that Barnette’s
conviction for larceny from a person is not a predicate offense,
Barnette still has more than three predicate offenses that qualify
him as an armed career criminal--convictions for assault with a
deadly weapon inflicting serious injury, and convictions for
breaking and entering on more than three separate occasions.
United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), cert.
denied, 126 S. Ct. 1463 (2006). We therefore conclude that no
error occurred in applying the armed career criminal statute in
this case.
Counsel also suggests that the district court erred in
determining that Barnette’s base offense level as an armed career
criminal was thirty-four, pursuant to U.S. Sentencing Guidelines
Manual (USSG) § 4B1.4(b)(3)(A) (2004), because he used or possessed
the firearm in connection with a crime of violence. Counsel
suggests that the evidence that Barnette actually fired the firearm
in question was not sufficient to warrant the higher offense level,
and that the base offense level should have been thirty-three,
pursuant to USSG § 4B1.4(b)(3)(B). Our review of the record
convinces us that, at a minimum, Barnette aided and abetted the
discharge of the firearm at or into an occupied vehicle. The
district court properly applied the greater base offense level
pursuant to USSG § 1B1.3(a)(1)(A) (base offense level determined on
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the basis of “all acts and omissions committed, aided, abetted,
. . . or willfully caused by the defendant”).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Barnette’s conviction and sentence.
This court requires that counsel inform Barnette, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Barnette requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Barnette. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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